United States v. Quentin Ferebee ( 2020 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4266
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
QUENTIN JAVON FEREBEE,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:17-cr-00218-MOC-DSC-1)
Argued: January 31, 2019 Decided: April 22, 2020
Before AGEE and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Traxler wrote the majority opinion, in which
Judge Agee joined. Judge Floyd wrote a dissenting opinion.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
TRAXLER, Senior Circuit Judge:
Quentin Javon Ferebee, a convicted felon, entered a conditional guilty plea to
unlawful possession of a firearm, see 18 U.S.C. § 922(g), and was sentenced to 10 months’
imprisonment and two years’ supervised release. Ferebee’s plea preserved his right to
appeal the district court’s denial of Ferebee’s motion to suppress. We find no reversible
error and affirm. 1
I.
On March 23, 2017, Ferebee was visiting his friend Shana Dunbar at her house in
Charlotte, North Carolina. Dunbar was on probation for a state offense, although Ferebee
was unaware of that fact. Ferebee was sitting on the sofa in the living room with a
marijuana blunt in his hand when law enforcement officials arrived to conduct a
warrantless search, as authorized by the terms of Dunbar’s probation. A black backpack
was on the floor, leaning against the sofa where Ferebee was sitting. Probation Officer
Jason Bensavage asked Ferebee to stand up so he could check the sofa for weapons.
1
After oral argument in this case, the Supreme Court issued its opinion in
Rehaif v. United States, 139 S. Ct. 2191 (2019), holding that the government is obligated
to prove that a defendant charged under 18 U.S.C. § 922(g) has knowledge of his relevant
status that prohibits him from lawfully possessing a firearm. See id. at 2194 (“To convict
a defendant, the Government therefore must show that the defendant knew he possessed a
firearm and also that he knew he had the relevant status when he possessed it.”). Ferebee
filed a supplemental brief raising a Rehaif claim, and we placed this case in abeyance
pending this circuit’s resolution of the questions arising under Rehaif. On April 16, 2020,
we granted Ferebee’s request to withdraw his Rehaif claim and remove his case from
abeyance.
2
Ferebee stood up, picked up the backpack with his left hand, and held it out as another
officer patted down Ferebee.
When Officer Bensavage asked Ferebee if he had any weapons on him or in the bag,
Ferebee “stated that the bag was actually not his.” J.A. 48. Officer B.M. Sinnott arrested
Ferebee for possession of marijuana and began placing Ferebee in handcuffs. As Ferebee
was being handcuffed, Officer Bensavage searched the sofa and found a handgun under
the cushions. Detective Thomas Grosse took the backpack from Officer Sinnott, who took
Ferebee outside, leaving open the door to the house as they exited. Detective Grosse
remained in the house and searched the backpack less than a minute after Officer Sinnott
took Ferebee outside. Detective Grosse found Ferebee’s identification card inside the
backpack, along with a firearm, marijuana, and drug paraphernalia.
Officers transported Ferebee to the police station after learning of his prior felony
conviction. At the station, Ferebee told police, among other things, that the backpack and
the gun inside it belonged to him.
Ferebee was indicted on a charge of unlawful possession of a firearm by a convicted
felon. He pleaded not guilty and sought to suppress the evidence recovered from the
backpack and his statements to the police. Ferebee contended that he had a reasonable
expectation of privacy in the backpack and that the warrantless search violated his Fourth
Amendment rights. At the conclusion of the hearing on the motion to suppress, the district
court issued an oral ruling denying the motion, concluding that Ferebee lacked standing to
challenge the search after denying ownership of the backpack and, alternatively, that the
search was a lawful search incident to arrest. The district court subsequently issued a
3
written order denying the motion. The written order included analysis that was not
contained in the oral ruling. Ferebee thereafter pleaded guilty but preserved his right to
appeal the denial of his suppression motion. See Fed. R. Crim. P. 11(a)(2).
Ferebee challenges both portions of the district court’s analysis on appeal. As to the
question of standing, Ferebee relies on the “collective knowledge” doctrine to argue that
his disavowal of ownership of the backpack does not prevent him from challenging the
search because the officer who actually searched the backpack did not hear Ferebee deny
ownership. As to the search-incident-to-arrest question, Ferebee argues that the
warrantless search was improper because he was outside the house and handcuffed when
the backpack was searched.
II.
A.
We begin with the “collective knowledge” doctrine. When considering the
existence of probable cause for warrantless searches or arrests, questions sometimes arise
as to whether probable cause must be established only through the information personally
known by the arresting or searching officer, or whether information known by other
officers may also be factored into the equation. Although some circuits permit the
aggregation of individual bits of independent knowledge, see United States v. Massenburg,
654 F.3d 480, 494 (4th Cir. 2011), this circuit limits application of the doctrine to cases
where the search or arrest is directed by an officer who himself has sufficient knowledge
to amount to probable cause:
4
[T]he collective-knowledge doctrine simply directs us to substitute the
knowledge of the instructing officer or officers for the knowledge of the
acting officer; it does not permit us to aggregate bits and pieces of
information from among myriad officers, nor does it apply outside the
context of communicated alerts or instructions.
Id. at 493; see United States v. Laughman, 618 F.2d 1067, 1072-73 (4th Cir. 1980) (“The
law seems to be clear that so long as the officer who orders an arrest or search has
knowledge of facts establishing probable cause, it is not necessary for the officers actually
making the arrest or conducting the search to be personally aware of those facts.”).
In this case, Officer Bensavage testified that Ferebee told him the backpack was not
his and that Officer Sinnott then handed the backpack to Detective Grosse, who searched
the backpack shortly thereafter. Detective Grosse did not hear Ferebee disclaim ownership,
and there is no evidence in the record that Officer Bensavage gave any instructions to
Grosse. Ferebee thus contends that the collective-knowledge doctrine prevents us from
attributing Officer Bensavage’s knowledge to Detective Grosse. And because Detective
Grosse did not know that Ferebee had disclaimed ownership of the backpack, Ferebee
argues that the warrantless search was unreasonable. We disagree. As we will explain, the
collective-knowledge doctrine simply has no bearing on the propriety of the search in this
case.
B.
As the Supreme Court has long made clear, “Fourth Amendment rights are personal
rights which . . . may not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34
(1978) (internal quotation marks omitted). The “capacity to claim the protection of the
Fourth Amendment depends . . . upon whether the person who claims the protection of the
5
Amendment has a legitimate expectation of privacy in the invaded place.” Id. at 143. “In
order to demonstrate a legitimate expectation of privacy, [a defendant] must have a
subjective expectation of privacy, and that subjective expectation must be reasonable.”
United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010) (alteration and internal quotation
marks omitted).
The requirement that the defendant have a reasonable expectation of privacy in the
property -- often characterized as whether the defendant has “standing” to challenge the
search -- is not jurisdictional, but it is nonetheless a threshold inquiry that is preliminary to
and distinct from the question of whether a warrant was required: “The concept of standing
in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person
must have a cognizable Fourth Amendment interest in the place searched before seeking
relief for an unconstitutional search . . . .” Byrd v. United States, 138 S. Ct. 1518, 1530
(2018) (emphasis added); id. at 1526 (“Whether a warrant is required is a separate question
from the one the Court addresses here, which is whether the person claiming a
constitutional violation has had his own Fourth Amendment rights infringed by the search
and seizure which he seeks to challenge.” (emphasis added)(internal quotation marks
omitted)); United States v. Bellina, 665 F.2d 1335, 1339 (4th Cir. 1981) (“[T]he threshold
question in every suppression case is the existence of a reasonable expectation of privacy
in the area searched.” (internal quotation marks omitted)). Accordingly, if the individual
seeking to challenge a search does not have a legitimate expectation of privacy in the
property or place being searched, the individual lacks “standing” and the inquiry ends
without consideration of the merits of the search claim.
6
“The law is well established that a person who voluntarily abandons property loses
any reasonable expectation of privacy in the property and is consequently precluded from
seeking to suppress evidence seized from the property.” United States v. Leshuk, 65 F.3d
1105, 1111 (4th Cir. 1995); accord United States v. Stevenson, 396 F.3d 538, 546 (4th Cir.
2005). That rule makes sense, as one who abandons property would have no subjective
expectation that the property would remain private, nor would society recognize any such
expectation as reasonable. For purposes of challenging a search, this court and most others
treat a disavowal of ownership of property as an abandonment of the property. See United
States v. Han, 74 F.3d 537, 543 (4th Cir. 1996) (“Denial of ownership . . . constitutes
abandonment.”); Leshuk, 65 F.3d at 1107, 1111 (defendant who disavowed ownership of
backpack and garbage bag found in field where marijuana was growing lacked a reasonable
expectation of privacy and therefore could not challenge the warrantless search); accord
United States v. Zapata, 18 F.3d 971, 978 (1st Cir. 1994) (“One who abandons ownership
forfeits any entitlement to rights of privacy in the abandoned property, and one who
disclaims ownership is likely to be found to have abandoned ownership.” (citation
omitted)); United States v. Torres, 949 F.2d 606, 608 (2d Cir. 1991) (“It is well settled that
an otherwise legitimate privacy interest may be lost by disclaiming or abandoning property,
especially when actions or statements disavow any expectation of privacy.”); United States
v. Frazier, 936 F.2d 262, 265 (6th Cir. 1991); United States v. Ruiz, 935 F.2d 982, 984 (8th
Cir. 1991). That is likewise a sensible rule, as one who disavows ownership is
disassociating himself from the property such that any expectation that the property would
remain private would not be reasonable. See Zapata, 18 F.3d at 978 (“[D]isclaiming
7
ownership is tantamount to declaring indifference, and thus negates the existence of any
privacy concern in a container’s contents.”); Torres, 949 F.2d at 608 (“Neither possession
nor ownership of property establishes a legitimate expectation of privacy unless the party
vigilantly protects the right to exclude others.”); United States v. Lewis, 921 F.2d 1294,
1302 (D.C. Cir. 1990) (“A voluntary denial of ownership demonstrates sufficient intent of
disassociation to prove abandonment.”).
Accordingly, in cases involving ownership disclaimers, the inquiry is whether the
defendant’s words or actions can reasonably be understood as disclaiming any privacy
interests in the property. See United States v. Small, 944 F.3d 490, 502 (4th Cir. 2019)
(“Intent to abandon may be inferred from words spoken, acts done, and other objective
facts.” (internal quotation marks and alteration omitted)), cert. denied, No. 19-1102, 2020
WL 1668360 (U.S. Apr. 6, 2020); Stevenson, 396 F.3d at 546 (explaining that the test for
abandonment is whether the defendant “retains a reasonable expectation of privacy” in the
property at issue (internal quotation marks omitted)). The inquiry focuses on objective
evidence of “the intent of the person who is alleged to have abandoned the place or object.”
United States v. Thomas, 864 F.2d 843, 846 (D.C. Cir. 1989); accord Bond v. United States,
77 F.3d 1009, 1013 (7th Cir. 1996) (“In determining whether a person has abandoned
property, we can infer from words spoken, acts done, and other objective facts whether he
voluntarily discarded, left behind, or otherwise relinquished his interest in the property in
question.” (internal quotation marks and emphasis omitted)).
While the abandonment inquiry focuses solely on the intent of the defendant, the
collective-knowledge doctrine focuses solely on the knowledge of the police officers; the
8
knowledge or intent of the defendant has no relevance to the question of whether the facts
known to the police are sufficient to establish probable cause. Given the differing focuses
of the inquiries, it is clear to us that the collective-knowledge doctrine for police officers
has no bearing on the separate question of abandonment by a defendant.
As noted, abandonment turns on the intent of the defendant as revealed through his
words or actions, and it can occur without the contemporaneous knowledge of any other
person. For example, a defendant could abandon a backpack by choosing to leave it as he
disembarks from a cross-town bus. The abandonment is complete when the defendant
deliberately walks away without the bag, even if there was no witness to the act. A
defendant could also abandon a backpack by leaving it on a sofa at a party and answering,
“it isn’t mine,” when asked by a fellow party-goer. The abandonment is complete upon
the disclaimer of ownership.
In this case, the abandonment was complete when Ferebee told Officer Bensavage
that the backpack was not his. At that point, Ferebee disassociated himself from the
backpack and lost any legitimate expectation of privacy and the “capacity” to challenge its
subsequent treatment. Rakas, 439 U.S. at 143 (explaining that the “capacity to claim the
protection of the Fourth Amendment depends . . . upon whether the person who claims the
protection of the Amendment has a legitimate expectation of privacy in the invaded
place”). Because Ferebee lost his privacy interest in the backpack after disavowing
ownership to Bensavage, it is simply irrelevant that Officer Grosse did not hear the
statement. Indeed, even if Officer Grosse believed at the time of the search that the
backpack belonged to Ferebee, our analysis would not change. The search took place after
9
conduct that the district court reasonably found sufficient to establish abandonment.
Ferebee lost any expectation of privacy at that moment, and the subsequent search therefore
did not violate Ferebee’s Fourth Amendment rights. Accordingly, Ferebee lacks the
capacity to bring a Fourth Amendment challenge to the search, without regard to Officer
Grosse’s knowledge or intent. See Han, 74 F.3d at 545 (“[W]hether the officers knew that
Han owned the bag [in which he disavowed ownership] is irrelevant. The constitutional
property right belonged to Han, and his abandonment of that right did not depend on
whether the officers knew that it existed.”).
We recognize that some out-of-circuit cases refer to the knowledge of the
“searching” or “investigating” officer when discussing the standard for abandonment. See,
e.g., United States v. Camberos-Villapuda, 832 F.3d 948, 952 (8th Cir. 2016)
(“Abandonment is determined based on the objective facts available to the investigating
officers at the time they conducted the challenged search.” (emphasis added)); United
States v. Pitts, 322 F.3d 449, 456 (7th Cir. 2003) (“To demonstrate abandonment, the
government must prove by a preponderance of the evidence that the defendant’s voluntary
words or actions would lead a reasonable person in the searching officer’s position to
believe that the defendant relinquished his property interests in the item to be searched.”
(emphasis added)). Those cases, however, did not involve a situation where only some of
the officers on the scene were aware of the facts establishing abandonment. Because that
issue was not presented, it is not surprising that the description of the evidence necessary
to establish abandonment referred to the searching or investigating officers. The courts
were not silently importing the collective-knowledge doctrine into an unrelated area of the
10
law, but were instead simply stating the rules governing abandonment in the context of the
facts of those cases. See United States v. Alexander, 573 F.3d 465, 473 (7th Cir. 2009)
(“Alexander had disclaimed that the vehicle was his. That is enough to establish
abandonment despite the officers’ belief that the [vehicle] was Alexander’s.”); United
States v. Ruiz, 935 F.2d 982, 984 (8th Cir. 1991) (disclaimer of ownership of luggage
sufficient to support district court’s conclusion that luggage was abandoned). Accordingly,
we do not believe that the cases referring to the knowledge of the searching officers can be
understood as holding that where a defendant abandons property in the presence of the
multiple law enforcement officers, a subsequent search is lawful only if it is performed by
an officer who personally and contemporaneously witnessed the evidence showing
abandonment. Indeed, such a rule would be inconsistent with the well-established rule that
a search of abandoned property does not implicate the Fourth Amendment. See United
States v. Tugwell, 125 F.3d 600, 602 (8th Cir. 1997) (“A warrantless search of abandoned
property does not implicate the Fourth Amendment, for any expectation of privacy in the
item searched is forfeited upon its abandonment.”); Bond v. United States, 77 F.3d 1009,
1014 (7th Cir. 1996) (“Because Bond abandoned the suitcase before the police searched it,
our Fourth Amendment inquiry ends.”). We therefore reject Ferebee’s claim that the
collective-knowledge doctrine has any bearing on the propriety of the district court’s
conclusion that Ferebee abandoned the backpack.
C.
Ferebee raises other challenges to the district court’s abandonment finding. He
contends that his disavowal of ownership is insufficient to show abandonment given that
11
he maintained physical possession of the backpack even after his statement. We disagree.
Continued physical possession is certainly a fact that a district court may consider in a
proper case, but the court is not precluded from finding abandonment in cases where the
defendant has physical possession of the property he has disavowed.
Ferebee also contends the district court erred by concluding in its written order that
when he was being patted down, he “extended [the backpack] towards the officers,” an
action that the district court found “reinforce[d] the disclaimer.” J.A. 98; see also J.A. 97
(stating that Ferebee “disclaimed ownership of the backpack while extending the backpack
in the direction of the approaching officers”). The district court did not include that factual
finding when orally denying the suppression motion at the conclusion of the hearing.
Ferebee argues that he had the backpack in his hand as he held his arm away from his body
to facilitate the pat-down. He contends that no witness testified that Ferebee was offering
the backpack to the police and that the district court’s finding thus is not supported by the
evidence.
While Ferebee is correct that no witness directly testified that Ferebee held the
backpack out towards the officers, it is equally true that no witness directly testified that
Ferebee was holding the backpack out to facilitate the pat-down -- both versions depend
on inferences drawn from the facts as presented at the suppression hearing. As both
versions are plausible and reasonable, our standard of review requires us to defer to the
inference drawn by the district court. See, e.g., United States v. Lewis, 606 F.3d 193, 197
(4th Cir. 2010) (“In assessing a district court’s decision on a motion to suppress, . . . . we
must construe the evidence in the light most favorable to the prevailing party, and give due
12
weight to inferences drawn from those facts by resident judges and law enforcement
officers.” (internal citation and quotation marks omitted)). But even if we were to assume
that the inference drawn by the district court was not reasonable, reversal would not be
required. Even if Ferebee were simply holding the bag out from his body but not holding
it towards the officers, the district court found that Ferebee previously had made a “clear,
unequivocal statement” disavowing ownership of the backpack and that he abandoned the
backpack at that point. J.A. 82; see also J.A. 98 (“[D]efendant’s words were an affirmative
disavowal of ownership. . . .”). Although “[a]bandonment should not be casually inferred,”
Small, 944 F.3d at 502, our cases have made it clear that a disavowal of ownership is alone
enough to support a finding of abandonment. See Han, 74 F.3d at 543 (“Denial of
ownership . . . constitutes abandonment.”); accord Leshuk, 65 F.3d at 1111 (affirming
district court’s finding of abandonment where defendants disclaimed ownership of bags
found to contain marijuana). The district court’s conclusion can therefore be affirmed
without consideration of the challenged inference. See United States v. Smith, 395 F.3d
516, 519 (4th Cir. 2005) (explaining that this court may affirm a district court’s ruling on
a motion to suppress on any ground apparent from the record).
D.
The dissent contends that the district court’s determination that Ferebee abandoned
the backpack is a legal conclusion to be reviewed de novo, rather than a factual finding to
which we must defer unless clearly erroneous. We disagree.
As our cases have made clear, the ultimate question of whether a given set of facts
gives rise to a reasonable expectation of privacy is a legal question. See Stevenson, 396
13
F.3d at 545; United States v. Ramapuram, 632 F.2d 1149, 1155 (4th Cir. 1980). But it is
the district court that tells us what that set of facts is, and the district court’s determination
of those underlying facts is subject to the deferential clear-error standard of review. That
distinction is evident in Stevenson, the case upon which the dissent relies. In Stevenson,
the question was whether the defendant had abandoned his privacy interests in an apartment
he had been renting on a week-to-week basis. The district court concluded, based on a
letter written by the defendant, that the defendant “had formed an intention not to return to
the apartment,” 396 F.3d at 540, and that the defendant therefore did not have a reasonable
expectation of privacy at the time law enforcement conducted a warrantless search of the
apartment. We reviewed the district court’s determination that the letter showed the
defendant relinquished his interest in the apartment for clear error. See id. at 544 (“[T]he
district court found as facts that, by the time of the search on January 24, 2003, Stevenson
had ‘no intention of returning to his apartment’ and ‘no longer considered himself a
resident of the apartment.’. . . Applying the clearly erroneous standard to these findings,
we conclude that the district court did not clearly err.”). We then went on to consider de
novo whether the facts as found by the district court were sufficient as a matter of law to
show that the defendant had no reasonable expectation of privacy in the apartment at the
time of the search. See id. at 545 (“Having affirmed the district court’s factual finding that
Stevenson had no intention to return to the apartment, we still must turn to the question of
whether that finding leads to the legal conclusion that any expectation of privacy that
Stevenson claimed in the apartment at the time of the search was unreasonable.”). In this
case, the district court held that Ferebee abandoned his privacy interest in the backpack
14
when he disclaimed ownership of it. That is a finding of fact, just as the relinquishment
finding in Stevenson was a finding of fact, and we must defer to it unless clearly erroneous.
The dissent also contends the district court’s abandonment finding was clearly
erroneous, arguing that “the evidence of abandonment does not preponderate,” and that
while some evidence “weighs in the government’s favor,” that evidence is
“counterbalanced” by other evidence favoring Ferebee. Dissenting Opinion, infra at 28.
As those statements make clear, the dissent’s real complaint is with the weight that the
district court gave to the evidence presented at the suppression hearing. The dissent’s
approach, however, is inconsistent with our limited and deferential role applying clear-
error review.
“A court reviewing for clear error may not reverse a lower court’s finding of fact
simply because it would have decided the case differently. Rather, a reviewing court must
ask whether, on the entire evidence, it is left with the definite and firm conviction that a
mistake has been committed.” United States v. Wooden, 693 F.3d 440, 451 (4th Cir.
2012) (internal quotation marks and alteration omitted). “If the district court’s account of
the evidence is plausible in light of the record viewed in its entirety, the court of appeals
may not reverse it even though convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently.” Anderson v. City of Bessemer City, 470
U.S. 564, 573–74 (1985). The dissent acknowledges that there is evidence (and case law)
supporting the district court’s conclusion that Ferebee abandoned the backpack by
disclaiming ownership, and the dissent describes the issue as “a close call.” Dissenting
Opinion, infra at 28. For a factual finding to be clearly erroneous, however, the finding
15
must be “against the clear weight of the evidence considered as a whole.” United States v.
Martinez-Melgar, 591 F.3d 733, 738 (4th Cir. 2010) (internal quotation marks omitted)
(emphasis added). In our view, the district court’s resolution of a “close” factual question
that is based on evidence found credible by the district court cannot be against the “clear
weight” of the evidence. We therefore disagree with the dissent’s view that the district
court clearly erred by finding as a factual matter that Ferebee abandoned his interests in the
backpack when he disclaimed ownership of it.
E.
Because the record supports the district court’s conclusion that Ferebee clearly and
unequivocally disavowed ownership of the backpack, we affirm the district court’s
conclusion that Ferebee abandoned the backpack and any legitimate expectation of privacy
in its contents. The collective-knowledge doctrine has no application to the issue in this
case, and the fact that the officer who searched the backpack did not hear the disavowal of
ownership does not undermine or otherwise affect the abandonment finding. Even if the
searching officer believed that the backpack belonged to Ferebee, he abandoned any
legitimate expectation of privacy in the backpack before it was searched, and he therefore
lacks the capacity to challenge the subsequent search. 2
2
Ferebee also contends the district court erred by concluding in its written
order that the suppression of the contents of the backpack was not required under the
inevitable discovery rule. In the district court’s view, an inventory search of the backpack
would have eventually been undertaken and the evidence inevitably discovered. Because
the government did not raise this issue below and offered no evidence about the inventory
search procedures of the law enforcement agencies involved in this case, the district court
erred by relying on the inevitable-discovery doctrine. See United States v. Bullette, 854
(Continued)
16
III.
Even if we were to conclude that the district court erred by finding that Ferebee
abandoned the backpack, however, reversal would not be required. As we explain, we
agree with the district court that the search of the backpack was a proper search incident to
arrest for which no warrant was required under the facts of this case.
“A warrantless search by the police is invalid unless it falls within one of the narrow
and well-delineated exceptions” to the Fourth Amendment’s warrant requirement. Flippo
v. West Virginia, 528 U.S. 11, 13 (1999) (per curiam). One of these well-delineated
exceptions authorizes warrantless searches incident to arrest. See United States v.
Robinson, 414 U.S. 218, 224 (1973). “This exception provides that when law enforcement
officers have probable cause to make a lawful custodial arrest, they may -- incident to that
arrest and without a warrant -- search ‘the arrestee’s person and the area within his
immediate control.’” United States v. Currence, 446 F.3d 554, 556 (4th Cir. 2006) (quoting
Chimel v. California, 395 U.S. 752, 763 (1969)). “Such searches have long been
considered valid because of the need ‘to remove any weapons that the arrestee might seek
to use in order to resist arrest or effect his escape’ and the need to prevent the concealment
or destruction of evidence.” New York v. Belton, 453 U.S. 454, 457 (1981) (alteration
F.3d 261, 265 (4th Cir. 2017) (“The inevitable-discovery doctrine . . . allows the
government to use information obtained from an otherwise unreasonable search if [the
government] can establish by a preponderance of the evidence that law enforcement would
have ultimately or inevitably discovered the evidence by lawful means.” (emphasis added)
(internal quotation marks omitted)). Nevertheless, our conclusion that the district court
properly found that Ferebee abandoned the backpack makes the district court’s error
harmless.
17
omitted) (quoting Chimel, 395 U.S. at 763). Nonetheless, “[t]he constitutionality of a
search incident to an arrest does not depend on whether there is any indication that the
person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone,
authorizes a search.” Michigan v. DeFillippo, 443 U.S. 31, 35 (1979).
Before the Supreme Court issued its opinion in Arizona v. Gant, 556 U.S. 332
(2009), courts routinely upheld searches incident to arrest in cases where the defendant was
handcuffed at the time of the search. See, e.g., Currence, 446 F.3d at 557-58; United
States v. McLaughlin, 170 F.3d 889, 893 (9th Cir. 1999); United States v. Abdul-Saboor,
85 F.3d 664, 668-69 (D.C. Cir. 1996); United States v. Mitchell, 64 F.3d 1105, 1110-11
(7th Cir. 1995); United States v. Helmstetter, 56 F.3d 21, 23 (5th Cir. 1995); United States
v. Horne, 4 F.3d 579, 586-87 (8th Cir. 1993). The question, then, is whether Gant changes
the analysis.
In Gant, the Supreme Court considered the scope of the search-incident-to-arrest
exception in a case involving a warrantless search of a vehicle. The Court held that, under
Chimel, a search of a vehicle incident to arrest is proper “when the arrestee is unsecured
and within reaching distance of the passenger compartment at the time of the search.” 556
U.S. at 343. The Court also held that “circumstances unique to the vehicle context justify
a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the
crime of arrest might be found in the vehicle.” Id. (internal quotation marks omitted). The
Court held that neither of those rationales applied under the facts of that case. First, the
passenger compartment of the vehicle would not reasonably have contained evidence of
the driving-under-suspension offense for which the defendant had been arrested. Id. at
18
344. Second, because the defendant had been removed from the vehicle, handcuffed, and
locked into the back seat of a police car when the search occurred, the “police could not
reasonably have believed . . . that Gant could have accessed his car at the time of the
search.” Id.
Ferebee argues that the search of his backpack was not proper under Gant because
he was handcuffed and standing outside of the house when the backpack was searched
inside. We disagree.
We need not decide whether Ferebee somehow waived his right to rely on Gant by
the manner in which he argued the issue below, as the government insists, nor need we
affirmatively decide the extent to which Gant applies to cases not involving vehicle
searches. Instead, we will assume for purposes of this case that Gant is not limited to
vehicle searches and that, under Gant, a search incident to arrest is proper only if the
defendant is “unsecured and within reaching distance” of the property being searched, such
that the police could reasonably believe that the defendant could access the property at the
time of the search. Even with that assumption, however, we cannot say the district court
erred in upholding the search, even though Ferebee was handcuffed at the time of the
search.
The information before the district court included a video recorded by Officer
Sinnott’s body camera. The video, which does not show the backpack search, begins as
Ferebee is being handcuffed behind his back and is then led by Officer Sinnott outside the
house through the open front door. The door remains open as Sinnott searches Ferebee
again. After the search, Ferebee, Sinnott and others mill about in a small area only a few
19
steps away from the open front door with the officers and backpack immediately inside the
front door. The video shows that Sinnott and Ferebee are never very far apart, but Ferebee
is not under Sinnott’s physical control. There is no impediment to Ferebee’s movement
beyond the handcuffs, and it is clear from the video that Ferebee is only a few feet outside
the house and thus could reach the other officers and the backpack within seconds.
Thus, the situation here is quite different from Gant. Whereas the defendant in Gant
was handcuffed and locked in the back of a police car, Ferebee was only a few steps away
from the backpack. He was handcuffed, but he still could walk around somewhat freely
and could easily have made a break for the backpack inside the house. Under these
circumstances, we do not believe that Ferebee was “secured” within the meaning of Gant.
As other courts have recognized, “handcuffs are not fail-safe,” United States v. Shakir, 616
F.3d 315, 320 (3d Cir. 2010), and they do not “instantly and completely eliminate all risks
that the suspect will flee or do [the officers] harm,” United States v. Sanders, 994 F.2d 200,
209 (5th Cir. 1993). Indeed, the body-camera video reveals that after Ferebee was
handcuffed and led outside, he managed to wad up and throw away his marijuana joint
without attracting the attention of the police officers around him. Thus, when considering
the propriety of the search, we need not rely solely on the speculative possibility that a
handcuffed defendant can still be dangerous, as we have in this case a handcuffed defendant
who in fact was able to tamper with evidence while handcuffed. We therefore conclude
that, despite the fact that Ferebee was handcuffed, the police reasonably could have
believed that Ferebee could have accessed the backpack. See Shakir, 616 F.3d at 321
(“[After Gant,] a search is permissible incident to a suspect’s arrest when, under all the
20
circumstances, there remains a reasonable possibility that the arrestee could access a
weapon or destructible evidence in the container or area being searched. Although this
standard requires something more than the mere theoretical possibility that a suspect might
access a weapon or evidence, it remains a lenient standard.”). Accordingly, we hold that
the warrantless search of the backpack was a proper search incident to arrest under Gant.
See United States v. Cook, 808 F.3d 1195, 1199-1200 (9th Cir. 2015) (search of backpack
was proper under Gant even though defendant was face-down on the ground with his hands
cuffed behind his back at the time of the search because there was an objectively reasonable
possibility that the defendant could break free and reach the backpack); United States v.
Perdoma, 621 F.3d 745, 750-53 (8th Cir. 2010) (warrantless search of bag in public bus
terminal was appropriate after Gant even though defendant was handcuffed and in the
presence of several police officers); Shakir, 616 F.3d at 321 (warrantless search of bag was
proper search-incident-to-arrest even though defendant was handcuffed and guarded by
two policeman when bag was at defendant’s feet and thus accessible to him). But see
United States v. Knapp, 917 F.3d 1161 (10th Cir. 2019) (finding warrantless search of
closed purse improper under Gant where defendant was handcuffed and standing three feet
away from purse and one officer was standing next to her and two other officers were
nearby).
IV.
Accordingly, for the foregoing reasons, we reject Ferebee’s challenges to the
warrantless search of his backpack and affirm his conviction.
21
AFFIRMED
22
FLOYD, Circuit Judge, dissenting:
Unlike my colleagues in the majority, I do not believe that Ferebee abandoned his bag.
Nor do I believe that the government has shown that the warrantless search of Ferebee’s
bag fell within the search-incident-to-arrest exception. Therefore, I respectfully dissent.
1.
The threshold question in this case is whether Ferebee had a reasonable expectation of
privacy in his bag when Officer Grosse searched it. There is no serious question that
Ferebee had a reasonable expectation of privacy in his bag up to the moment he told Officer
Bensavage that the bag was not his. After all, it is well-established that people generally
have a reasonable expectation of privacy in the contents of opaque bags that they own (or
have permission to use) and that they keep within their immediate control. See, e.g., Bond
v. United States, 529 U.S. 334, 338 (2000) (bus passenger had reasonable expectation of
privacy in “opaque bag” that he had placed in overhead compartment “directly above his
seat”).
The government, however, argues that Ferebee abandoned his bag before Grosse
searched it, thereby giving up his reasonable expectation of privacy in the bag’s contents.
The argument itself is unsurprising: it has long been understood that a person cannot, under
the Fourth Amendment, challenge a warrantless search of abandoned property. Abel v.
United States, 362 U.S. 217, 241 (1960) (“There can be nothing unlawful in the
Government’s appropriation of . . . abandoned property.”). Property is abandoned when
23
the objective evidence indicates that the property owner or possessor of the property
voluntarily distanced himself from his interest in the property to such an extent that, in the
eyes of a reasonable person, it was not objectively reasonable for him to expect the property
to remain private. See United States v. Leshuk, 65 F.3d 1105, 1111 (4th Cir. 1995)
(abandonment turns on “whether the evidence sufficiently established that [the defendant]
abandoned any property interest he had” in property searched by the police); see also
United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994) (when government asserts
that property searched without a warrant was abandoned, “the critical inquiry is whether
the person prejudiced by the search voluntarily discarded, left behind, or otherwise
relinquished his interest in the property in question so that he could no longer retain a
reasonable expectation of privacy with regard to it at the time of the search.” (internal
punctuation and alterations omitted)).
In the proceedings below, the district court agreed with the government, concluding
that Ferebee had abandoned his bag before it was searched. According to the district court,
after the officers entered the room where he was sitting, Ferebee did two things: (1) he told
Officer Bensavage that the bag was not his, and (2) at the same time, he held the bag out
to a group officers as if inviting them to take it. The district court concluded that Ferebee,
by this combined statement and gesture, “unequivocally denied ownership of the bag”; in
doing so, he “abandoned the backpack” for purposes of the Fourth Amendment. J.A. 98,
100.
Notably, as I understand it, the district court’s conclusion that Ferebee abandoned his
bag is legal, not factual. See United States v. Stevenson, 396 F.3d 538, 545 (4th Cir. 2005)
24
(separating district court’s findings of fact from ultimate legal conclusion that defendant
had abandoned his reasonable expectation of privacy in his property). Hence, although we
review for clear error the findings of fact underlying the district court’s conclusion, we
review de novo whether those findings amount to abandonment as a matter of law. Id.
This comports with our general approach to Fourth Amendment questions involving a
reasonable expectation of privacy: as we have stated, “a lower court’s determination that a
reasonable expectation of privacy does or does not exist ‘is a legal conclusion involving
substantive Fourth Amendment analysis . . . subject to full review by this court.’” United
States v. Ramapuram, 632 F.2d 1149, 1155 (4th Cir. 1980) (quoting United States v.
Vicknair, 610 F.2d 372, 379 (5th Cir. 1980) (alteration in source)). 1
Against that background, let us first consider the district court’s factual finding that
that Ferebee “picked up the bag and extended it towards the officers” as if to say, “this is
not my bag, take it.” J.A. 98. I believe this finding to be clearly erroneous. That is, having
reviewed the record, I am “left with a definite and firm conviction that a mistake has been
made . . . .” Consol. Coal Co. v. Local 1643, United Mine Workers of Am., 48 F.3d 125,
1
This is a point of division among our sister circuits. Compare United States v.
Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001) (whether the facts as given amount to
abandonment is a matter of law subject to de novo review); and United States v. Ojeda-
Ramos, 455 F.3d 1178, 1187 (10th Cir. 2006) (court reviews de novo whether defendant
had an objectively reasonable expectation of privacy in property said to have been
abandoned); with United States v. Crumble, 878 F.3d 656, 659 (8th Cir. 2018) (district
court’s determination of abandonment is a factual finding reviewed for clear error); United
States v. Stephens, 206 F.3d 914, 916–17 (9th Cir. 2000) (same); United States v. Lee, 916
F.2d 814, 818 (2d Cir. 1990) (same); United States v. Manner, 887 F.2d 317, 327 n.9 (D.C.
Cir. 1989) (same).
25
128 (4th Cir. 1995).
The district court grounded its finding on a single piece of evidence: Bensavage’s
testimony. According to the district court, Bensavage “testified that he saw [Ferebee] pick
up the bag from the floor, stand, hold it out towards the officers, and disclaim ownership
of the bag.” J.A. 95. Having thus paraphrased Bensavage’s testimony, the district court
stated that “[a]t the same time [Ferebee] disclaimed ownership [of the bag], he picked up
the bag and extended it towards the officers,” thereby “reinforc[ing]” his verbal disclaimer.
J.A. 98.
As I see it, neither Bensavage’s testimony nor the record as a whole supports the district
court’s version of events. Bensavage did not testify that Ferebee held his bag out toward
the officers. See J.A. 46–58. He merely testified that Ferebee “picked up a black bag with
his left hand.” 2 J.A. 48. Indeed, none of the officers who were present during Ferebee’s
arrest described a scene like the one painted by the district court. No one but Bensavage
reported hearing Ferebee’s statement that the bag was not his, and no one—not even
Bensavage—reported that Ferebee extended the bag toward the officers. Perhaps for that
reason, in the proceedings below, the government did not argue that Ferebee had held his
2
In an earlier report on the incident, Bensavage wrote that Ferebee, having been
ordered off the couch, “picked up a black backpack with his left hand as he stood up and
held it out to his side as Officer B. Sinnott search[ed] his person due to his possession of
marijuana.” J.A. 17. The most natural reading of this report is that while Sinnott patted
him down, Ferebee held his arms away from his sides. In my view, to arrive at this
understanding of events requires no inference at all: Bensavage’s report is simply a
description of how any normal person, holding his or her bag, would respond to a police
officer’s pat-down.
26
bag out to the officers as if inviting them to take it. Even viewed in the light most favorable
to the government, the record indicates only that Ferebee held his bag in his left hand, out
to his side, while an officer patted him down. It was clear error for the district court to find
that Ferebee disclaimed ownership of his bag while holding the bag out to the officers as
if to say, “this is not my bag, take it.” J.A. 98.
This does not end the inquiry into abandonment. According to the government, even
if the district court clearly erred in finding that Ferebee held his bag out to the officers as
if inviting them to take it, the error was harmless, because the district court could have
relied solely on Ferebee’s disclaimer of ownership to conclude that Ferebee abandoned his
bag before the search. My colleagues in the majority agree. Given the circumstances, I
cannot.
In considering this question, I would adopt two sensible principles that our sister
circuits have applied in the same context but that our own precedent has not explicitly
addressed. First, the government bears the burden of proving abandonment by a
preponderance of the evidence. United States v. Denny, 441 F.3d 1220, 1226 (10th Cir.
2006); United States v. Pitts, 322 F.3d 449, 456 (7th Cir. 2003); cf. United States v. Cofield,
272 F.3d 1303, 1306 (11th Cir. 2001) (stating that government bears burden of proving
abandonment without specifying whether government must show abandonment by a
preponderance of the evidence). Second, in deciding whether the government has met its
burden, we eschew per se rules and conduct a totality-of-the-circumstances analysis.
United States v. Lopez-Cruz, 730 F.3d 803, 808 (9th Cir. 2013); United States v. Harrison,
689 F.3d 301, 307 (3d Cir. 2012); United States v. Hawkins, 681 F.2d 1343, 1346 (11th
27
Cir. 1982) (“[A] disclaimer of ownership, while indeed strong indication that a defendant
does not expect the article to be free from government intrusion, is not necessarily the
hallmark for deciding the substance of a fourth amendment claim.”)
Viewing the present case though that lens, it seems to me that in light of the totality of
the circumstances, the evidence of abandonment does not preponderate. Ferebee’s
disavowal of ownership is evidence that he abandoned his bag, but his nonverbal conduct
is evidence that he never intended to give up his possessory interest in the bag and expected
the bag’s contents to remain private. In other words, Ferebee’s disclaimer of ownership—
an isolated statement made to Bensavage and unreported by any other officer in the room,
despite the officers’ close proximity—weighs in the government’s favor, but it is
counterbalanced by Ferebee’s conspicuous and continuous physical possession of the bag.
I do not mean to suggest that someone who is holding a bag can never abandon it—
only that someone who is treating his bag in a way perfectly consistent with an ongoing
possessory interest does not give up his reasonable expectation of privacy in the bag based
on one statement, neither unsolicited nor emphatic, made to a single law enforcement
officer in what was, in all likelihood, a confusing and stressful moment. It is true that our
cases—especially Leshuk, 65 F.3d at 1105, and United States v. Han, 74 F.3d 537 (4th Cir.
1996)—provide support for the majority and make this a close call. Yet neither Leshuk nor
Han required us to address the circumstances that face us now: a defendant who disclaimed
ownership of his property but also picked up his property when approached by law
enforcement and then held onto his property while officers searched his person and the area
around him. The distinctions I would draw are fine, but we must sometimes be willing to
28
draw fine distinctions in order to prevent the protections of the Fourth Amendment from
eroding case by case, millimeter by millimeter, over time.
In the end, I simply cannot bring myself to believe that a reasonable, objective person
watching Ferebee’s arrest would have concluded, based on the totality of Ferebee’s words
and actions, that Ferebee was indifferent to, or had no interest in, what happened to his bag,
such that he could no longer have reasonably expected the contents of the bag to remain
private. Thus, though I understand what led my friends in the majority to their conclusion,
I would hold that as a matter of law, Ferebee did not abandon his bag and has standing to
challenge the bag’s search under the Fourth Amendment.
2.
Despite holding that Ferebee abandoned his bag, the majority, in extensive dicta, goes
on to conclude that even if Ferebee had not abandoned his bag, the search would not have
required a warrant because it was incident to Ferebee’s arrest. I believe my colleagues are
mistaken.
The search-incident-to-arrest exception to the warrant requirement derives largely
from Chimel v. California. 395 U.S. 752 (1969). In that case, the Supreme Court held that
when an officer makes an arrest, it is reasonable—and therefore not prohibited by the
Fourth Amendment—for the officer to search “the arrestee’s person and the area within his
immediate control.” Id. at 763 (internal quotation marks omitted). The Court defined “the
area within the arrestee’s immediate control” as the area “from which [the arrestee] might
29
gain possession of a weapon or destructible evidence.” Id.
The search-incident-to-arrest doctrine has developed significantly in the vehicle
context. In New York v. Belton, 453 U.S. 454, 460 (1981), the Supreme Court, applying
Chimel, held that when a law-enforcement officer “has made a lawful custodial arrest of
the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search
the passenger compartment of that automobile,” as well as any containers therein. Id. This
expansive application of Chimel “was based in large part on [the Supreme Court’s]
assumption ‘that articles inside the relatively narrow compass of the passenger
compartment of an automobile are in fact generally, even if not inevitably, within ‘the area
into which an arrestee might reach.’” Arizona v. Gant, 556 U.S. 332, 341 (2009) (quoting
Belton, 453 U.S. at 460).
We, like our sister circuits, went on to apply Belton outside the vehicle context when
determining whether a search of a defendant’s bag qualified as a search incident to arrest.
For instance, we stated in Han that “Belton established that incidence to arrest continues to
justify a search even after the likelihood of danger or destruction of evidence has been
eliminated . . . .” 74 F.3d at 543. Therefore, we held that “officers may separate the suspect
from the container to be searched, thereby alleviating their safety concerns, before they
conduct” a valid search incident to arrest. Id. at 542; see also United States v. Litman, 739
F.2d 137, 139 (4th Cir. 1984) (applying Belton outside vehicle context).
But in Gant, the Supreme Court revisited Belton and recalibrated its gloss on Chimel,
holding that “the Chimel rationale authorizes police to search a vehicle incident to a recent
occupant’s arrest only when the arrestee is unsecured and within reaching distance of the
30
passenger compartment at the time of the search.” 556 U.S. at 343 (emphasis supplied).
The Supreme Court specifically reiterated that the search incident to arrest exception is
intended to protect officer safety and prevent the destruction of evidence. Id. at 339. Thus,
“[i]f there is no possibility that an arrestee could reach into the area that law enforcement
officers seek to search, both justifications for the search-incident-to-arrest exception are
absent and the rule does not apply.” Id.
Gant’s narrower interpretation of the search-incident-to-arrest exception has thus
supplanted the expansive interpretations that flowed from Belton. And like Belton, Gant
has repeatedly been applied outside the vehicle context. 3 Indeed, several of our sister
circuits have turned to Gant to decide whether the warrantless search of an arrestee’s bag
qualifies as a search incident to arrest if the search occurs after the arrestee has been
handcuffed. The Tenth Circuit, applying Gant, has recently held that the search of an
arrestee’s purse was not a search incident to arrest when the arrestee was in handcuffs and
several police officers were nearby—even though the purse was only a few feet away from
the arrestee. United States v. Knapp, 917 F.3d 1161, 1169 (10th Cir. 2019). The Ninth
and Third Circuits have held that the warrantless search of an arrestee’s bag, made
immediately after the arrestee is handcuffed, falls within the search-incident-to-arrest
exception when the arrestee remains within reaching distance of the bag and officers have
an objectively reasonable belief that the arrestee is armed and dangerous. United States v.
3
The government seeks to convince us that Ferebee waived any argument from
Gant during the proceedings below. That contention is meritless. Ferebee did not waive
his argument from Gant, despite the government’s selective quotation of his counsel.
31
Cook, 808 F.3d 1195, 1199–200 (9th Cir. 2015) (arrestee’s bag was “right next to him,”
officers knew that arrestee had “used the same backpack earlier in the day to transport
drugs,” and officers “had already recovered two firearms from [a] house associated with
[the arrestee’s] co-conspirator”); United States v. Shakir, 616 F.3d 315, 319, 321 (3d Cir.
2010) (arrestee’s bag was “literally at his feet,” arrest occurred “in a public place with some
20 people around,” officers “had reason to believe that one or possibly more of [the
arrestee’s] accomplices was nearby,” and one of the arrestee’s suspected accomplices “was
restrained only by two unarmed private security officers.”). The Eighth Circuit has held
that when a handcuffed arrestee remains “in close proximity” to his bag and has “already
run from the officers once,” a warrantless search of the bag falls within the search-incident-
to-arrest exception. United States v. Perdoma, 621 F.3d 745, 750–51 (8th Cir. 2010). 4
I see nothing in Gant or the opinions of our sister circuits to convince me that the
search-incident-to-arrest exception applies here. At the time of the search, Ferebee was
handcuffed and indisputably not within reaching distance of his bag. The video of the
arrest contains no inkling of physical struggle or attempted flight; what it shows is Ferebee
calmly being led outside, after which he calmly stands in the yard next to an officer. Thus,
Ferebee was restrained, physically compliant, and separated from the area to be searched.
An officer stood next to him, and multiple officers remained inside with the bag. Both
4
Compare United States v. Casper, 34 F. Supp. 3d 617, 626 (E.D. Va. 2014)
(holding that search of defendant’s coat was not a lawful search incident to arrest when
defendant was separated from coat, placed in handcuffs, and led outside of room before
search occurred; exception did not apply because defendant “had no reasonable possibility
of reaching the coat” at the time of search).
32
Ferebee and the bag were manifestly under the officers’ control, and Ferebee was
thoroughly outnumbered by the law enforcement officers on the scene. Broadly, there was
no exigency; specifically, the search-incident-to-arrest conditions established by the
Supreme Court—that the arrestee be both unrestrained and within reaching distance of the
area to be searched—were not present. See Gant, 129 S. Ct. at 1719.
It is the government’s burden to prove otherwise. Coolidge v. New Hampshire, 403
U.S. 443, 455 (1971). Yet the best the government can do is speculate that Ferebee’s
handcuffs could have spontaneously failed; or that Ferebee, still handcuffed, could have
rushed back into the house, dodged past the couch and the various officers crowding the
room, and, in a remarkable feat of dexterity, reached into his backpack to destroy evidence
or retrieve his firearm. This Court should not permit the government to circumvent the
Fourth Amendment on such patently flimsy grounds. 5 In doing so, the majority pushes the
search-incident-to-arrest exception further than the Supreme Court or any of our sister
circuits, straying from the principle that exceptions to the warrant requirement are to be
“jealously and carefully drawn.” Coolidge, 403 U.S. at 455. I cannot join them: this was
not a valid search incident to arrest. 6
5
From my perspective, that Ferebee managed to crumple up and toss away a
marijuana blunt that was already in his possession while he was in handcuffs does not make
it more likely that, while handcuffed, he would have been able to re-enter the house and
reach into his backpack. The former is something that any average person could do. The
latter would be quite exceptional.
6
A final point bears mentioning. The district court, seeking a third justification for
its denial of Ferebee’s motion to suppress, concluded that the evidence recovered from
Ferebee’s bag fell within the saving ambit of the inevitable-discovery rule. I agree with
(Continued)
33
3.
For the reasons stated, I respectfully dissent.
my colleagues that the district court erred. When the government seeks to avoid the
suppression of evidence by invoking the inevitable-discovery rule, it is the government’s
burden to prove that the inevitable-discovery rule applies. United States v. Bullette, 854
F.3d 261, 265 (4th Cir. 2017). Here, the government did not even argue that the inevitable-
discovery rule applied; the district court raised the argument sua sponte. That was a serious
mistake. When a federal court takes it upon itself to make a legal argument that the
prosecution has not made, based on evidence that the prosecution has not produced, the
legitimacy of our criminal-justice system is degraded. The court has a duty to ensure that
the government is held to its burden of proof in every criminal case. Here, the district court
turned that duty on its head.
34